February 3 , 2006 The McCain Amendment on Detainee Abuse: Will It Make a Difference? It looked like a rare but significant victory for basic human rights, but was it? After months of effort, Republican Senator John McCain succeeded in December in forcing President George Bush to accept an amendment to a defence spending bill that banned both torture and cruel, inhuman and degrading treatment of all detainees, foreigner or American, held by any US agent anywhere in the world. On the face of it, this seems like an extraordinary outcome. Mr McCain, who had himself been tortured as a prisoner of war in North Vietnam, only prevailed after defeating a concerted lobbying campaign led by Vice President Dick Cheney, first to quash the amendment entirely, and then to negotiate an exemption for CIA interrogators. Mr Cheney argued that “aggressive” interrogation techniques were an essential tool in America’s war on terror, and that their use should not be outlawed in the questioning of al-Qaeda and other terrorist suspects. The political stakes were high. The disagreement between Mr McCain and the administration was widely reported in the American media. At one stage Mr Bush, through his spokesman, even threatened to veto the defence bill if the McCain amendment were attached to it. This would have been the first time Mr Bush had used the presidential veto. Then, after overwhelming votes in both houses of Congress in favour of the amendment, and a last-minute flurry of negotiations between the White House and Mr McCain, Mr Bush reluctantly signed the bill, and the McCain amendment, into law. Closing Loopholes in the Law It is difficult to believe that after such a high-profile climb down—as well as the current furore over Mr Bush’s secret, and probably illegal, programme of warantless phone-tapping—the administration would now dare to ignore the amendment entirely. Moreover, the amendment is worded in a way that should make it impossible to evade legally. Not only does it explicitly ban torture, but it also states that “no individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment.” The administration had argued that cruel, inhuman or degrading treatment, a category of mistreatment dubbed “torture lite” by some observers, was not illegal when carried out by intelligence agents against foreign suspects held outside of the United States. Since the September 11th attacks, there has been accumulating evidence that the Bush administration has used practices against detainees that would generally be considered as cruel and inhuman treatment and even torture. In a series of internal memoranda and public statements, the administration apparently tried to give itself legal cover for such practices by revising accepted definitions of torture and interpreting federal laws and international treaties in startling and creative ways to claim that this behaviour was lawful. Mr McCain’s aim was to close all such loopholes, and to establish a single rule, and a single set of interrogation techniques, that would be permissible worldwide. So why is there so much doubt that the amendment will stop the mistreatment of detainees in American custody? Some scepticism might be warranted given the Bush administration’s record of evasions on this issue. The president himself has repeatedly said that America does not engage in torture and treats all detainees humanely, even while harsh treatment has been reported to be continuing on a large scale, and the Vice President has tried to block Mr McCain’s ban on such treatment. The president has never explained or commented on this obvious discrepancy. But there are also doubts more specific to the administration’s attitude toward the McCain amendment itself. A number of well-informed sources with connections to people in the Bush administration report that there is now a vigorous internal debate going on about whether to implement the amendment, or to find a way to ignore or bypass it. An Ambiguous Signing Statement Concern about the amendment’s fate arose as soon as Mr Bush signed the defence bill. At that time he issued a statement giving his interpretation of its provisions. He said, among other things, that the executive branch would construe the McCain amendment “consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power”. These arguments have been used by the administration to defend, in public and in court, a range of actions from holding detainees without charge or trial, to seizing and killing suspects abroad, to tapping telephones in the United States. The fact that Mr Bush’s signing statement raises them again suggests that he feels he has the power to set aside the McCain amendment’s ban on inhuman treatment whenever he deems it “necessary”. Mr McCain himself appears to share this fear. A few days after the president issued his signing statement, Mr McCain took the unusual step of issuing a terse statement of his own, together with Senator John Warner, the chairman of the Senate Armed Services Committee. They noted that “Congress declined when asked by administration officials to include a presidential waiver” to the amendment’s ban on torture and other harsh treatment, and promised “strict oversight to monitor the Administration’s implementation of the new law.” Strict Oversight And Its Limits Some observers believe that the fate of the amendment now depends on how vigorously the two Senators fulfil this promise of “strict oversight”. The Senate Armed Services Committee, of which Mr McCain is also a member, could hold hearings and demand that administration officials, including those from the CIA, testify under oath. Closed-door sessions could be held to hear testimony about classified information, if necessary. But sceptics point out that such hearings in the wake of Abu Ghraib have had only a limited effect at curbing abusive interrogations, which is the main reason that Mr McCain insisted on his amendment. And some wonder whether Mr McCain will really find it politically appealing to hold hearings aimed at calling to account, and possibly embarrassing, a sitting Republican administration while he campaigns for the 2008 Republican presidential nomination, as he is widely expected to do. The legal status of either the President’s signing statement or the Bush administration’s bold claims for sweeping presidential powers have yet to be determined by America’s Supreme Court. Many legal scholars believe that the Supreme Court—even the conservative-leaning court that Mr Bush has achieved with the recent appointment of John Roberts and Samuel Alito—would reject any claim that the president can ignore laws passed by Congress, and would probably give little weight to the president’s interpretation of laws in his many signing statements, because interpreting the law and the constitution is the court’s primary responsibility, not the president’s. And yet it could take years before any relevant test cases reach the federal courts, and then are appealed all the way to the Supreme Court. In fact, this might never happen. Another provision of the defence bill, the so-called Graham-Levin amendment, seems designed to make it more difficult than ever for a test case to reach federal court. This provision sharply restricts the grounds on which federal courts can hear appeals from prisoners at the Guantanamo Bay prison. How federal judges will respond to, or interpret, this provision is difficult to predict. But it represents yet another hurdle, introduced by Congress rather than the administration, to having questions concerning the imprisonment and treatment of detainees resolved by federal courts. A Costly Concession? In addition to this, Mr McCain did make one concession to the administration which may limit the effectiveness of his amendment’s ban on torture and harsh treatment. He agreed to extend to CIA interrogators the same right enjoyed by uniformed military personnel accused of torture to argue in their defence that they “did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful”. But CIA officials are civilians, and always have the options of refusing a questionable order—to use harsh interrogation methods, for example—or resigning, choices not easily available to someone in uniform. One former CIA official believes that the fact that the administration sought this concession, and that the defence bill also promises government legal aid to anyone accused (even private CIA contractors), indicates that the administration plans to continue with its harsher interrogation methods and wants to reassure CIA officers that they will be supported in the unlikely event that they are ever accused of breaching the law. So Mr McCain’s concession could help undermine his own complete ban on torture. A key test of the administration’s intentions could be the publication of a new edition of the US Army’s field manual. This is because the McCain amendment specifies that only interrogation methods listed in the Army’s Field Manual on Intelligence Interrogation are permitted for use on detainees in military custody (the restriction would not cover detainees held directly by the CIA). There has been speculation that one way for the administration to get around the amendment would be to redraft the Army manual, and indeed the publication of a new manual has been delayed, and is now expected in the next month or two. One possibility is that the Army manual’s public pages will list only acceptable interrogation methods, but that any “special” methods for urgent cases will be confined to a classified appendix, and that only a small corps of interrogators would be informed of these or authorised to use them. Only Congressional probing in committee hearings, closed-door or otherwise, could reveal whether the administration has adopted this approach. Reasons for Hope Despite all these doubts about whether the Bush administration will abide by the McCain amendment, not everyone is gloomy about its value. Tom Malinowski, Washington advocacy director for Human Rights Watch, who lobbied hard for the amendment’s passage, considers it a watershed. The amendment, he says, is “an extremely potent political statement by a huge bipartisan majority in Congress that the Bush administration’s interrogation policy doesn’t have any legitimacy.” Any individual officials in the military or the CIA authorising or participating in harsh interrogations, he maintains, will now think twice about what they are doing. Mr Malinowski also believes that the amendment’s passage will give added weight to those within the Bush administration who have long argued that the mistreatment of detainees should stop. Rather than being alarmed by the president’s signing statement, he sees this as “great news” for human rights supporters and a huge tactical mistake by those Bush advisers, such as Mr Cheney, who want to retain the torture option. This is because the presidential statement alerted outsiders that the administration intended to find ways around the amendment. It also enraged Mr McCain and other members of Congress, who may now feel compelled to hold oversight hearings. “This is not a time for the usual self-fulfilling liberal despair,” Mr Malinowski argues. “This is how democracies work. The issue will be resolved by politicians fighting it out.” And yet even he concedes that the amendment is unlikely to stop all torture and harsh treatment anytime soon, its ostensible purpose. If the administration does continue with its harsh interrogation policy, it will be pursued in secret. The most likely way the public will learn of it is not through Congressional hearings, but from unofficial leaks from within the administration itself. One former CIA official believes that the effect of the amendment will not be to ban torture and harsh techniques which fall just short of torture, but rather to compel the administration to apply it only to the few dozen most important terrorist suspects and only on a case-by-case basis, with each case individually authorised, rather than as an across-the-board policy available to most CIA interrogators. Will anyone ever be brought to account for the mistreatment of detainees in the wake of the amendment’s ban on inhuman treatment? Because of the legal hurdles facing any prosecution for torture or “torture lite,” a remedy through the courts looks distant or impossible. Another possibility would be a retrospective investigation of interrogation policy by a subsequent, perhaps Democratic, administration. This too seems a remote prospect. For obvious reasons, new presidents have been reluctant to endorse investigations of predecessors. Mr Bush, for example, never pursued investigations into Bill Clinton’s controversial last-minute pardons of wealthy criminals. But Mr Bush’s unprecedented claims of sweeping presidential powers, and his administration’s brushing aside of federal law, may yet provoke an exception to this don’t-look-back habit. Mr Cheney’s willingness to fight so hard and so publicly against passage of the McCain amendment and, when this looked inevitable, for its dilution, indicates that he felt that it would make some difference. Even if the Bush administration now ignores the amendment, it may provide a marker for the future. One observer with good government contacts says that many administration officials are “paranoid” that a future commission of inquiry into the interrogation of detainees might be set up. It may be this fear, however ill-founded, which proves to be the most effective brake on the Bush administration’s policy of torturing and mistreating the prisoners in its custody.
David Manasian, a writer based in London, was formerly Legal Affairs Editor of The Economist.
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